Clarence Brandenburg was a 1960s-era Ku Klux Klan leader in rural Ohio — the sort of fellow who’d get along well with Koran-burning Florida preacher Terry Jones if the two had a chance to meet. During one infamous 1964 rally, Brandenburg burned a cross and made a speech raising the specter of “revengeance” against blacks and Jews. Brandenburg was convicted under Ohio’s criminal syndicalism law, but the U.S. Supreme Court overturned the result. In a famous 1969 decision bearing Brandenburg’s name, the Court held that hate speech of this kind was protected under the First Amendment unless it was (a) directed toward inciting “imminent lawless action,” and (b) there was a likelihood of inciting “imminent lawless action.”

As far as domestic law goes, I’ve always felt that the Brandenburg test is the right one — not just for the United States, but for any civilized nation that takes free speech seriously: It provides even dedicated hatemongers with the maximum amount of ideological room to express their opinions — right up to the point where the mobs start running through the streets, looking for “revengeance.”

Under the Brandenburg test, Jones — a U.S. citizen — has every right to burn a Koran in Florida; just as his friend Nakoula Basseley Nakoula (aka “Sam Bacile”) has the right to make crude films mocking Islam in California. The protests against Nakoula’s “Innocence of Muslims” (which Jones helped promote) have resulted in about 75 deaths worldwide. But under the logic of Brandenburg, neither he nor Jones bear responsibility, since it wasn’t their intention to incite imminent lawless action.

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But neither man is a Canadian citizen. Our government doesn’t owe either of them a podium. And so the decision whether to let Jones into the country to deliver a hate speech in front of the Ontario legislature on Thursday shouldn’t necessarily be governed by the same free-speech standard contained in Brandenburg, or even by Canada’s (less permissive) hate speech laws.

A more sensible approach is to look past Jones’ intentions, and examine only the single practical question of whether his speech in Canada is likely to cause violence. Based on precedent, I’d say the answer is yes.

Anonymous, politically unaccountable Canadian border guards have the power to turn away travelers for any number of trivial-seeming reasons — from minor past criminal convictions, to a sick-looking pet, to a bong in your trunk. That’s because visitors to Canada have no constitutional rights, at least until they cross onto Canadian territory. So given the vastly higher stakes with Jones, it’s odd that we would make a fuss about our elected, politically accountable immigration minister acting to ban a world-class hatemonger looking to use Canada as a stage for a photo-op.

Innocence of Muslims wasn’t filmed by the U.S. government. But once it circulated on YouTube, the Muslim world branded it as a White House production. The reaction in regard to Canada would be similar if Jones performed one of his stunts — I’m thinking fire, but urine isn’t out of the question — with a Canadian flag and a few local hotheads grinning in the background.

Three years ago, I argued that British anti-war activist George Galloway should be let into Canada because he was merely a nauseating propagandist — not a security threat. “A better solution [than banning him],” I argued, “would have been to let the guy in, but then have police on hand to apprehend him as soon as he violated Canada’s anti-terror laws — say, by fund-raising for a banned terrorist group (something he’s done before).”

The problem with Jones is that it doesn’t do you any good to arrest him after the fact. Once the match is lit on YouTube — and a hundred other sites beyond the reach of Western law — the cat’s out of the bag. And it’s no act of censorship for Canada to tell Jones that he’s free to spout all the hate he wants, but that as an American citizen he has no right to enter Canada for the purpose of using the Ontario legislature as his sound stage.

All of this is unfolding as a bill sits before Parliament that would grant our immigration minister the power to ban foreign visitors on grounds of “public policy considerations.” That wording is too vague: I would prefer something rigidly consequentialist that targets speakers who likely will cause the aforementioned “imminent lawless action” (whatever their intentions).

But whatever the terminology we employ, we should acknowledge that words have unprecedented power in the age of the internet. And Canadian diplomats, businessmen and backpackers in the Middle East and other parts of the Muslim world shouldn’t pay with their lives for the untrammeled free-speech rights of a man who isn’t even a Canadian citizen.

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